Closed session stopped: Open Meeting Law complaint on next BOS agenda

Town Counsel halted a planned closed session discussion by the Board of Selectmen at their meeting Tuesday regarding an Open Meeting Law complaint filed by the Cohasset Mariner.

The Mariner alleges the board decided on who should fill the chairman’s seat among themselves away from the public eye between the election on May 11 and the first meeting of the new board that Tuesday (May 14).

The OML states, “Courts have held that the Open Meeting Law applies when members of a public body communicate in a manner that seeks to evade the application of the law. Thus, in some circumstances, communications between two members of a public body, when taken together with other communications, may be a deliberation.”

Erin Dale

Town Counsel halted a planned closed session discussion by the Board of Selectmen at their meeting Tuesday regarding an Open Meeting Law complaint filed by the Cohasset Mariner.

The Mariner filed a complaint with the Town Clerk and Selectmen’s office on June 12 alleging that the selectmen violated the state OML during their May 14 meeting, during which the board reorganized and appointed new officers for the year. Fred Koed was nominated as chair by Martha Gjesteby, seconded by Karen Quigley, and Koed was voted unanimously with no discussion.

Diane Kennedy, who has served as vice-chair for the past year, was re-appointed vice-chair, also with little discussion (see sidebar). Kennedy, who was elected to the board in the spring of 2011, besting Quigley who was up for reelection at the time, is entering the last year of her three-year term, as is Koed. The tradition in Cohasset has been that a selectman entering the third year of his or her term is elected chair.

In a hotly contested, four-way race for two seats in the May 11 Town Election, Quigley and Steve Gaumer were elected. Russ Bonetti, chairman of the Community Preservation Committee, was a close third followed by incumbent selectman Leland Jenkins, who lost his bid for a second term.

The town is also in the midst of numerous controversies – not the least of which are lawsuits against the town by the former town manager and police chief. In the months ahead, the town will be seeking a permanent Town Manager and Police Chief.

Therefore, it would seem as though the subject of who should lead the board would be worthy of public discussion.

The Mariner alleges the board decided on who should fill the chairman’s seat among themselves away from the public eye between the election on May 11 and the first meeting of the new board that Tuesday (May 14).

The OML states, “Courts have held that the Open Meeting Law applies when members of a public body communicate in a manner that seeks to evade the application of the law. Thus, in some circumstances, communications between two members of a public body, when taken together with other communications, may be a deliberation.”

Furthermore, even the expressing of an opinion on official business within the board’s jurisdiction, such as who should be chairman to a majority of the board – even in an email – is considered deliberation even if none of the other members respond.

The selectmen planned to discuss the Mariner’s OML complaint in an executive session during their Tuesday, June 18 meeting. Under the OML, boards can meet in closed sessions if the discussion pertains to pending litigation but an OML complaint is not “litigation” nor are the ramifications of a violation of the law.

The Mariner challenged their decision to discuss the OML complaint before the selectmen voted to go into executive session.

Selectman Steve Gaumer responded that litigation was “the natural course of the complaint.” Koed agreed that the situation was potentially litigious.

Kennedy, however, said that the board would need to look at the OML exemptions because she agreed that the board could not go into executive to discuss something that could “eventually” lead to litigation.

Acting Town Manager Michael Milanoski said the board was convening in executive under the OML’s exemption 3, echoing that the OML complaint “has potential litigation tied to it.”

The Mariner received an email from Milanoski on Wednesday morning stating that the board posed the question to Town Counsel in a phone call, to which counsel responded this could not be discussed in executive and advised the board to discuss it in open session at a future meeting.

Town Counsel Paul DeRensis said in a phone call Wednesday that the selectmen called him around 11 p.m. Tuesday night when they entered into executive session. DeRensis said that he did advise the board to discuss the complaint in open session.

“I suggested they have a discussion of where to go forward in open session so the Mariner can see what’s going on and not have any basis for concern,” said DeRensis. The attorney said that he also offered to put on an OML presentation in July.

Koed reiterated this in an email to the Mariner on Wednesday and asked for a one-day extension to discuss the OML complaint, since the deadline to respond is June 26 (the town has 14 days to respond to an OML complaint from the date it was filed). The selectmen are meeting on Thursday, June 27 instead of Tuesday, June 25 because of the senate election.

Selectmen awkwardly appointed officers

After no discussion during the May 14 selectmen meeting — other than a few procedural remarks — Fred Koed was appointed chairman and Diane Kennedy was reappointed as vice-chairman. Kennedy had called the meeting to order as vice-chair and called for a motion to appoint a new chair.

Selectman Martha Gjesteby moved Koed with Karen Quigley seconding. Steve Gaumer then further moved that Kennedy retain the position of vice-chair. Gjesteby interjected that according to Robert’s Rules, the board needed to vote one position at a time.

Kennedy then asked if there was any discussion, but Gjesteby pointed out that there was already a motion on the floor. “You called for a vote,” Gjesteby said.

“I just wanted to see if there was a discussion first,” said Kennedy, “if anybody had anything to add.”

After the confusion, Kennedy quipped, “Well, this is clearly why I probably shouldn’t be chair then, huh?”

Kennedy then proceeded to call for a vote, but Quigley said that she would like to say something before turning to Gjesteby and asking if that was allowed.

Gjesteby responded, “Well…I guess you can, but it isn’t necessary.”

There was a pause before Quigley said to Kennedy, “Ok, let’s go to a vote.”

Kennedy asked, “Would you like to speak?”

“No, no, definitely not,” said Quigley. “Not now.”

Kennedy called for a vote again and each member voted “aye” for Koed. Koed, however, was inaudible, so Kennedy asked him to clarify if he voted for himself. He responded with an “aye.” Kennedy then stood up from the center seat to allow Koed to take his place as chair.